Fleckenstein v. Dry Dock, East Broadway Railroad — 8 N.Y. St. Rep. 32

Majority

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Florian Fleckenstein, Resp't, v. The Dry Dock, East Broadway, etc., Railroad Co., Appl't.^[1]

(Court of Appeals,

Filed April 19, 1887.)

Headnote

.Hegligence—Street railways—Right of way.

Street railway cars are confined to the track and cannot turn out to avoid obstacles, hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or wilfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks, and if they fairly and in a reasonable manner respect the paramount right of the railway, and without fault on their part are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

Appeal from a judgment of the supreme court, general •term, second department, affirming a judgment entered on a verdict for plaintiff.

Plaintiff was the driver of a large two-horse brewery-wagon, and in the forenoon of June 18, 1883, halted his team on the easterly side of Lewis street, New York city. He was on the proper side of the street (the right hand side), and his team and wagon were close in to the curb. Lewis street is very narrow, only twenty-five feet wide between the curbs. Plaintiff dismounted, and proceeded to carry three kegs of beer into the cellar of the premises in front of which he had stopped. While he was taking down the last keg, some employees of the street cleaning department, for the purpose of cleaning the gutter in which his team and wagon stood, led the horses forward and outward, and left them so that the horses stood “ clear over to the railroad track.” When the plaintiff emerged from the •cellar-way, he saw this change, and at the same time saw one of defendant’s cars about half a block distant coming to-

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wards his team quite rapidly. He sprang to his horses’ heads to back the team and wagon off the track; but, before he could succeed in his purpose, the car was driven against him, knocking him down and injuring him.

Edmund Randolph, for def’t and app’lt; Stephen B. Jacobs, for pl’ff.

The evidence of the plaintiff tended to show that, while he was engaged in trying to remove his team and wagon from the track of defendant’s road, one of its drivers carelessly drove one of its cars against him, and caused the injury of which he complains. This evidence was controverted on the part of the defendant, and hence there was a question of fact for the jury, and their decision thereon is not reviewable here.

The trial judge did not err in charging the jury that the defendant did not have the exclusive right to the use of its tracks, but simply the paramount right. Street railways have the lawful right to put their tracks in streets, and run their cars thereon. Their cars are confined to the tracks, and cannot turn out to avoid obstacles thereon. Hence they have the right of way, and persons lawfully driving upon the same tracks must not recklessly, carelessly or willfully obstruct the passage of their cars. But such persons are not absolutely bound to keep off or get off from the tracks. They must fairly and in a reasonable manner respect the paramount right of a street railway; and if they do this, and without any fault on their part they are injured by carelessness or fault chargeable to the railway, the law affords them a remedy by action for damages.

The judgment should be affirmed.

All concur.